Chapter 12 - Sentencing PDF

Preview

Summary

Criminal Procedure Chapter 12 Page 1 of 3PART 4: Post-trial Phase  Once accused found guilty and convicted  After conclusion of trial  court must impose sentence  Although a criminal case is finalised once the convicted offender has been sentenced, a criminal case may be re-evaluated by means of...

Description

Criminal Procedure

Chapter 12

Page 1 of 3

PART 4: Post-trial Phase  Once accused found guilty and convicted  After conclusion of trial  court must impose sentence  Although a criminal case is finalised once the convicted offender has been sentenced, a criminal case may be re-evaluated by means of an appeal or review

Chapter 12: Sentencing INTRODUCTION 



Purpose of sentencing: punish convicted offenders for offences they have committed by limiting their rights and imposing obligations on them in ways that are not contrary to the Constitution o Since sentences limit fundamental rights, such limitation is only justified when the accused persons have been convicted by due process of law Sentencing procedure ≠ trial procedure o During sentencing procedure presiding officer plays a more active role and his approach is more inquisitorial than accusatorial

LEGISLATION 



    

Sentencing system faces various problems: o Perception that cases are not being treated alike o Not enough attention is given to the interests of the victim o Serious offences are not punished severely o Prisoners are being released too readily To counteract some of this criticism  mandatory minimum sentences were introduced with eth Criminal Law Amendment Act o Criminal Amendment Act  limits the sentencing discretion of the presiding officer by prescribing minimum sentences for certain offences Despite introduction of Criminal Amendment Act  criticism against criminal system persisted SA Law Commission proposes legislation re: a sentencing framework Proposed Sentencing Framework Act will provide for sentencing guidelines for a particular category of offences, restitution and compensation to the victim of the crime with the emphasis on restorative justice The proposed Sentencing Framework Act will contribute to legal certainty by brining together in one easily accessible law all the provisions dealing with the imposition of sentence The general principles applicable to sentencing will be clearly stated o The publication of normative sentencing guidelines may contribute to an effective and speedy sentencing system o The simplified procedure may also clarify the sentencing process to the public and encourage the participation of the public in the administration of justice

SENTENCING PROCEDURE 

After person convicted and before sentence imposed  prosecution may produce to the court a record of previous convictions alleged against such person [SAP69]

Criminal Procedure    

Chapter 12

Page 2 of 3

Court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed Court must allow accused and prosecution to call witnesses or to adduce evidence relevant to sentencing and may itself call witnesses or adduce evidence Court may examine accused and any person who has been subpoenaed to attend sentencing proceedings if their evidence appears to the court essential for the determination of an appropriate sentence Before passing sentence the court must allow accused and the prosecution to address the court on the issue of sentencing and on any evidence

SENTENCING OPTIONS FOR ADULT OFFENDERS   

 

Court has choice between a custodian and a non-custodian [community] sentence Where offence is serious or offender poses such a risk that society has to be protected, court has no option but to impose sentence Court may be subjected to the provisions of eth Criminal Procedure Act or any other law that restricts the punishment jurisdiction of a court, impose the following sentence upon a person convicted of an offence: o Imprisonment for life o Imprisonment o Imprisonment for an indefinite period following an order declaring an offender a dangerous criminal o Imprisonment for an extended period following an order declaring an offender an habitual criminal o Periodical imprisonment o Committal to an institution o A fine o Correctional supervision o Causation and discharge Where court imposes more than one sentence, the sentences will commence one after the expiration, setting aside or remission of the other, unless the court directs that such sentences must run concurrently Court may also impose the following orders regarding the sentence namely: o The conditional or unconditional postponement of the sentence o The suspension of the sentence on various conditions; or o Restitution and compensation Court may also in addition to the sentence, except a sentence that requires restitution or compensation as part of correctional supervision or as a condition of postponement or suspension, make a restitution and compensation order. This restitution and compensation order is not a sentencing option in the narrow sense but it offers a cheap and efficient means of reparation for the victims of crime. Restitution, in the narrow sense, means the restoration of an item of property to its lawful owner. Compensation goes further and encompasses the making good of damage resulting from the commission of a crime

ROLE OF THE PRESIDING OFFICER, PROSECUTION AND DEFENCE DURING THE SENTENCING PROCEDURE

1. Role of presiding officer

Criminal Procedure

Chapter 12

Page 3 of 3



Court is at the centre of the sentencing stage and the process distinguishes between receiving evidence on the one had and the address by the parties on the other hand  Sentencing discretion can only be properly exercised on the basis of the availability of all facts relevant to the matter  Court has to decide which evidence has potential to provide the necessary information and the court has the discretion to allow such evidence o only then will court be in position to form correct impressions and make complex value judgment that is required for the imposition of an appropriate sentence  If necessary information is not forthcoming from parties  court is required to obtain that info in order to be able to pass an appropriate sentence  Court must explain the details of the implementation of the sentences to the sentenced offender in an open court when the sentence is announced o Once presiding officer has imposed a sentence, presiding officer is functus officio and can no longer amend or change sentence imposed o A review i.t.o. s 304(4) of CPA may be instituted  Where presiding officer who convicted accused is not available for sentencing due to recusal, transfer, leave, death or serious illness, another presiding officer may impose sentence after consideration of the evidence 2. Role of the prosecutor   must be sensitive re: the interests of the victim in every case  Prosecutor must present all evidence to ensure that presiding officer is in the position to impose an appropriate sentence 3. Role of defence  Present mitigating circumstances to the court

INFLUENCE OF THE CONSTITUTION ON SENTENCING 



 

I.t.o. s 12(1)(e) of Constitution  sentence imposed may NOT be cruel, inhuman or degrading o This is an elaboration of the right to human dignity i.t.o. s 10 of Constitution o Therefore, some sentence options such as those of capital and corporal punishment have been rejected on constitutional grounds as contrary to human dignity Sentencing must also be proportionate to seriousness of crime committed o Where accused given sentence that is not proportionate to seriousness of offence itself, offender is subjected to an unjustifiable loss of rights that may well be cruel, inhuman or degrading S 35(2) of Constitution  sets minimum rights of all detainees, including sentenced prisoners o Sentence may NOT infringe these guaranteed rights There has also been a growing recognition that the guaranteed equal protection of the law i.t.o. section 9(1) of the Constitution also means that the rights of victims of crime need to be respected and reflected in appropriate sentences...